Two Canadians scratch their heads over New York moving closer to banning e-cigarette

[Catherine and I write this with the warning to readers that we know just enough about U.S. politics to get at least something wrong. On the other hand, as we know from trying to understand our own country’s politics, being American might not have gotten us much closer to the truth.]

As most readers of this blog are now probably aware, just recently New York’s Assembly Health Committee overwhelmingly passed a measure (21-4) that would ban the e-cigarette until the FDA passes final judgment. This is, of course, terrible news not only for New York vapers, but also for all those would-eventually-switch smokers. Should this bill advance (it has yet to pass the Senate), a ban here could set a precedent for other states to follow.

Historically we (and we mean us two – we cannot speak for all Canadians) have always rooted for the Democrats in the United States, because being left-leaning ourselves, they have always seemed the better choice (just a little more like Canadians if that doesn’t offend anyone; we’d even say socialist, since up here that’s just another word, but we realize that down there it might cause some readers’ heads to explode). However, in light of the direction they seem to be going in recent years, both parties seem increasingly alien to us. As Carl explained in a previous blog posting, when it comes to drug wars and being anti-harm reduction (and too pushy in general when it comes to passing bills that limit people’s choices, ostensibly in the name of public health), the Democrats seem to be in the lead.

It’s strange that this bill has been passed by the same health committee that just last year defeated a bill that would have reduced abortion rights, on the ground of defending women’s choices. Now, a little over half a year later, this committee apparently feels that smokers do not deserve the right to reduce their own health risks by having access to a vastly safer nicotine product. So it would seem that they feel the need to protect women’s choices, but not the safer options for smokers? We’re baffled. All this, of course, is done in the name of public health. However, as Chris Snowdon has pointed out, Linda Rosenthal (the Democrat who sponsored the bill) has indicated that it actually has more to do with her own anecdotal experience with cigarettes. She has stated that because she quit smoking without the aid of e-cigarettes, so should everyone else. This does not quite seem in line with promoting a more equal society based on the acknowledgment that all people are different and that luck plays a part in whether we end up rich or poor, healthy or not healthy; this bill instead seems intent on punishing those engaging in something considered sinful. (At the very least it demands that only politically correct means of atonement – sorry, we mean “quitting cigarettes” – will be acceptable.)

Another crucial piece of this puzzle of course is that lawmakers seem to be unable to separate nicotine use from health effects. Fixated on the fact that these devices will allow people to continue using nicotine, it does not seem to matter to them, or they are too blinkered to see that what matters more is whether users are healthy or not.

In the January 18 Wall Street Journal Opinion Page, Barack Obama had an article published in which he wrote

I am signing an executive order that makes clear that this [striking the right balance] is the operating principle of our government. This order requires that federal agencies ensure that regulations protect our safety, health and environment while promoting economic growth.

In his e-letter, Bill Godshall pointed out that this could easily read as an endorsement of harm reduction and in particular, electronic cigarettes. Currently the amount of money and effort being spent (and much if not all of that being financed by the American public through taxation) to erect barriers to e-cigarettes and their use is at the best a colossal waste of money and at worst a betrayal of the public trust.

Unfortunately Obama’s seeming valuation of consensus over leadership, as further evidenced by yesterday’s State of the Union address, holds out few hopes of changing the present sorry state of affairs. In 2009, Ethan Nadelmann held out the hope that change for the better would arise out the recession; that tighter budgets meant, as he put it, “we can no longer afford to pay for our prejudices”. He was referring more to the drug war and the high rate of incarceration but the remark would aptly fit anti-tobacco policy as well.

America is still in recovery and has additional challenges to face at this time – a rocky road for the foreseeable future – and if Obama is like the driver, he is also suggesting that the others in the car (including the kids presently fighting in the back) should help steer. With any luck, he’ll pull over to have one of his rare smokes, maybe try an e-cigarette, and then maybe his anecdotal evidence might outweigh Rosenthal’s; when it comes to anecdotal evidence, as we all know the validity of anecdotal evidence is directly related to the fame of the expounder.

The promise of vaping, quite possibly the holy grail of tobacco harm reduction, should not be being sullied by the likes of Rosenthal, who does a little research and finds e-cigarettes “too mysterious” to be allowed. This is just a baby step up from the public warning on e-cigarettes from the Department of Health in Manila that these products not only might not help with quitting smoking but “worse, it could even deliver nicotine to the lungs”. It’s just sad when the person on the street seems to know so much more about these than the people who have the power to ban them.

At the end of the day, however, this bill has advanced whether we like it or not, and our disappointment in the the New York Assembly Health Committee is obviously great. It will be interesting to see if hope is revived through the Senate (currently held by the Republicans), where there is still a chance for some intelligence on this issue and thus its defeat. Considering the track records on this issue, it would be simple enough to continue castigating the Democrats and expecting more of the Republicans, but party memberships seem to be only one small indicator of where someone might stand on this issue.

If there is ever an issue that should transcend party lines, it is access to better health, and the protection of the right to choose that better health. Individual ideas about what people *should* be doing, and forcing them along that path in the name of public health (when it really has to do with purity), should simply not be on the agenda of any legislator, Republican or Democrat.

(Disclaimer: We cannot claim the slightest superiority in this issue. We speak from sad experience; we suffer because our “health experts” deemed e-cigarettes to be more dangerous than smoking banning them before most Canadians even knew what they were, and we also have a leader who, as much as we criticize Obama, would trade for him in a New York minute. )

-Paul L Bergen and Catherine M Nissen

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Comments

  • Elaine Keller  On January 27, 2011 at 10:29 pm

    We Yanks are scratching our heads, too. Shared this on my Facebook page and on the CASAA Facebook page.

  • Thad Marney  On January 29, 2011 at 3:06 pm

    One minor correction: Its not quite accurate to say that the New York bill would ban e-cig sales “until the FDA passes judgement” because the FDA is not a judicial review and they’ve already passed judgement on e-cigs: FDA believes reduced harm tobacco products should be regulated and sold like pharmaceuticals–they said so in their request for rehearing en banc.

    The problem with this legislation is that it runs directly afoul of the appeals court who already said that the FDA cannot regulate (and thus could not approve) e-cigarettes as a therapeutic device under the FDCA when they are not marketed with therapeutic intended use, but can only regulate traditionally marketed tobacco products like e-cigarettes under the FSPTCA as they clearly fit the definition of tobacco products and the plain meaning of “modified risk tobacco products”.

    Why? Because if non-pharmaceutical companies are “allowed” to sell tobacco products that don’t cause thousands of deaths or have a 98% relapse rate, the entire economy of antitobacco regulation and health care would lose millions in federal grants and programs from tobacco taxes and Master Settlement Agreement payments, pharmaceutical sales, cancer research, COPD treatments, educational programs, and anything else you can think of that depends on people quitting and/or dying.

  • Paul  On January 29, 2011 at 4:14 pm

    Thad, thanks for the clarification (we did say we would get something wrong!)

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